Judicial Power

Question 1

What is judicial power

Answer 1

law applying power that also inherently determines scope and makes some law

Question 2

There is judicial ___ in the court to ___

Answer 2

power, decide cases/give judgments

Question 3

What is judicial duty

Answer 3

to exercises independent judgment in the law of the land

Question 4

where does independent requirement come from in judicial duty

Answer 4

not in Consti but assumed at time as part of “judge”

Question 5

giving opinions requires judgement meaning ___

Answer 5

analysis not just roll of the dice

Question 6

All branches ____ but only judges have ___

Answer 6

interpret the law, duty/office to do so

Question 7

Perquimans stands for the principle that judges must ___

Answer 7

follow the law even when unpopular

Question 8

Case is defined by __

Answer 8

subject (national law)

Question 9

Controversy defined by __

Answer 9

parties to the suit

Question 10

There is a debate about whether CC requirement means ____ OR ___

Answer 10

required to hear all, menu to choose

Question 11

Judges duty NOT to ___

Answer 11

follow “natural” law, defer to majority/minority view, save reputation by rescuing popular statute (Sebelius), evaluate policies, defer to agencies (Chevron/Auer)

Question 12

Brutus 11 was written by a ___

Answer 12

anti-Federalist worried about judicial despotism

Question 13

Brutus 11 concerned that Supreme Court will try ___

Answer 13

to construe Fed law as broadly as possible

Question 14

Brutus points out that there is no power in Consti to ___

Answer 14

correct judicial errors or control adjudication

Question 15

Fed 78 argues judiciary least dangerous to Consti because ___

Answer 15

least capacity to injure (relies on exec to carry out judgments, money from Cong)

Question 16

Fed 78 argues without judiciary there is ___

Answer 16

nothing to check Congress and uphold rights

Question 17

Judicial review is the power to ___

Answer 17

hold statutes uncon

Question 18

Marbury did not invent judicial review because it is ___

Answer 18

part of ordinary duty to follow the law

Question 19

Calling it judicial review implies that judges have ___ but really ___

Answer 19

choice to control or not, duty means no choice

Question 20

What are the things beyond judicial power

Answer 20

advisory opinions (precommitting), no standing, case must be ripe, not moot, not political Q, can’t subdelegate

Question 21

Why can’t judges subdelegate

Answer 21

judicial power by nature can’t be subdelegated

Question 22

What is the problem with requiring standing to litigate

Answer 22

means uncon laws will stay on the books + failure to litigate can set a precedent

Question 23

What is judicial supremacy idea

Answer 23

other branches must obey Court expounding Const

Question 24

Key idea from Marbury

Answer 24

duty of judiciary to say what the law is

Question 25

Marbury says that Court has constitutional supremacy because ___

Answer 25

consti higher than any statute

Question 26

Marbury didn’t strike statute down but __

Answer 26

held it inoperable

Question 27

Judges have more ____ authority than other branches

Answer 27

moral/legal

Question 28

View of precedent originally

Answer 28

if law ambigous turn to precedent

Question 29

20th century view of precedent

Answer 29

as binding

Question 30

Locke idea about unbiased adjudicators

Answer 30

if none people will turn to heaven (revolution)

Question 31

Problem with precedent as binding

Answer 31

allows errors to compound over time. move away from Consti, judicial duty to stand up for law

Question 32

Precedent by acquiescence argument

Answer 32

systematic unbroken practice gloss on Exec power (Youngstown, Frankfurter concurrence)

Question 33

Lincoln-Douglas Debates: Lincoln supported __

Answer 33

departmentalism

Question 34

Departmentalism is ___

Answer 34

idea public servants should support Consti as they understand it

Question 35

Lincoln argued that Dred Scott decision __ and that Douglas was ___

Answer 35

shouldn’t be resisted but should seek to overturn it, accepting next decision (nowhere could ban slavery)

Question 36

Douglas argued for __

Answer 36

judicial supremacy –> decision binding on everyone whether we like it or not

Question 37

Judicial supremacy means treating decisions about Consti as if ___

Answer 37

they were Consti itself

Question 38

Douglas thought there was a danger in __

Answer 38

undermining public confidence in the court, inciting a mob

Question 39

Cooper holding

Answer 39

extreme judicial supremacy –>SC interpretations are supreme so binding effect on the states

Question 40

HAM thinks Cooper is an ____ because ___

Answer 40

overstatement, difference between law and interpretation

Question 41

Ham thinks law is more than just ___ there are __

Answer 41

dicta, principles beyond any judge

Question 42

Ham thinks interpretations are ____ but ___

Answer 42

important because judges are experts, not the final word

Question 43

Two problems with judicial supremacy

Answer 43

mean can’t overturn own precedent?, if sole arbiter seems like unelected bureaucrats making powerful decisions

Question 44

Political Qs are based ___

Answer 44

SoP

Question 45

Two views of what belongs to other branches

Answer 45

narrow=what Consti gives them, broad=what judiciary decides it shouldn’t decide

Question 46

In Ham opinion, political Q doctrine has been ___

Answer 46

misused, prudence gives too much room for abuse

Question 47

Why are courts sometimes fearful to get involved

Answer 47

risk legitimacy (don’t have force or purse power)

Question 48

Luther principle

Answer 48

some legal disputes for Pres/Leg

Question 49

Luther question

Answer 49

whether state govt legit is political Q

Question 50

Ham opinion on Luther

Answer 50

both govts meet republican form of govt clause so maybe neither legally objectively correct but must be more moderate solution

Question 51

Nixon holding

Answer 51

Non-justiciable when constitutional commitment of issue to political dept OR lack of judicial standard for solving it

Question 52

Souter dissent in Nixon

Answer 52

Senate hearings justiciable in theory (if coin toss)

Question 53

Nixon reasons

Answer 53

try and sole imply Senate broad discretion in impeachment, judicial review would lead to chaos

Question 54

Ham opinion on Nixon

Answer 54

Court should ensure Nixon every right to be tried, functionalist views waters down rights, Court could get to same place by saying try means try as they wish